IN RE: PET FOOD PRODUCTS LIABILITY LITIGATION

Filing 88

Emergency MOTION for Discovery Declaration of Michael Hayes in Support of Del Monte's Motion pursuant to Rule 26 by DEL MONTE FOODS COMPANY. (Attachments: #1 Exhibit Independence Photo 1#2 Exhibit Independence Photo 2#3 Exhibit Independence Photo 3#4 Exhibit Independence Photo 4#5 Exhibit Independence Photo 5#6 Exhibit Independence Photo 6#7 Exhibit Independence Photo 7#8 Exhibit Independence Photo 8#9 Exhibit Independence Photo 9#10 Exhibit Independence Photo 10)(FAMA, RICHARD)

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]BEFORE THE UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY IN RE PET FOOD PRODUCTS LIABILITY LITIGATION Civil Action No. 07-2867 MDL Docket No. 1850 (ALL CASES) DECLARATION OF MICHAEL HAYES. OF DEL MONTR FOODS COMPAN'Y' IN SUPPORT OF DEL MONTE'S MOTION TO LIMIT THE RETENTION OF RECALLED PET TREATS AND FOOD, RAW WHEAT GLUTEN AND INGREDIENTS INCLUDING RECALLED WHEAT GLUTEN
STATE Ole Pennsylvania

COUNTY OF Allegheny Michael Hayes, being first sworn upon oath, says:
1) I am the Director of Quality Assurance of Defendant, Del Monte Foods

Company (Del Monte). I am making this Declaration based upon personal knowledge and am competent to testify to the matters stated below.

2)

In my position as Director of Quality Assurance for Del Monte, my duties

and responsibilities include accounting for and managing the recalled pet treats, food and ingredients currently being stored by Del Monte, and overseeing Del Monte's efforts to combat infestation of same.

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3)

On April 1, 2007 and April 6, 2007, Del Monte recalled certain pet treats

and food that may have been tainted with contaminated wheat gluten purchased from ChemNutra, Inc. As a result of the recalls, Del Monte is holding a tremendous amount of

recalled product, raw recalled wheat gluten and ingredients containing recalled wheat gluten. Del Monte is storing 115,927 cases of organized recalled product , amounting to approximately 1,028,306 units of organized pet treats and food, and 83,526 containers of unorganized materials at three locations: W atsontown , Pennsylvania ; Independence, Missouri; and, Mira Loma,

California . In addition, Del Monte is storing raw, unprocessed wheat gluten purchased from ChemNutra, Inc. in warehouses located in Topeka, Kansas and Watsontown , Pennsylvania, and "work- in-progress " at the Topeka, Kansas location . Work-in- progress is a dry mix of ingredients that was pulled off the production line by Del Monte at the time of its recall . This dry mix may contain, in part, recalled wheat gluten puuchased from ChemN'utra, Inc.

4)

The majority of the recalled pet treats and food held by Del Monte are

inventoried by product-type or SKU and date of manufacture (collectively " SKU date"). These units (pet treats or food packaged for retail sale) are stored in cases and stacked on fiall or partial pallets . This is similar or identical to the way Del Monte packages the units at its manufacturing facilities . As such, there are records and documents that show whether this product ever left Del Monte's warehouses, or was delivered to a retailer or distributor and returned . Attachment "1" to this Declaration is an inventory of the organized recalled pet treats and food currently stored by Del Monte, and quantity of same. Although this inventory is organized and has been stored with care, due to the length of time it has been stored and the damage caused by transporting it back to Del Monte, some of the cans and pouches containing recalled product have become compromised and are leaking their contents . The leaking contents has created an infestation problem, including flying insects and larvae.

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5)

As detailed in Attachment 1 to this Declaration , Del Monte is storing

organized recalled pet treats and food for 47 SKU dates. Where is one SKU date for which Del Monte neither held nor received any product . That SKU is 583880, Cl' Roy Country Stew Hearty Cuts in Gravy Dog Food . I have personal knowledge that CheinNutra , Inc. only wheat gluten from batch number 20061101 was used to manufacture this recipe on this SKU date. I also have personal knowledge that wheat gluten comprises 2.43% of the total formula for that recipe. 6) The cost to Del Monte of storing the 1,028,306 units of organized recalled

product is over $ 27,000 per month and $324,000 per year.

7)

In addition to the organized recalled product that is inventoried by SKU

and production date and stored on pallets, there is a substantial amount of unorganized material that Del Monte received directly from retailers and is holding at warehouses in Mira Lonla, California ; Independence , Missouri ; and, Watsontown , Pennsylvania . There are approximately 83,526 containers of this unorganized material . The containers are predominantly re-used

banana boxes but are also various types of other boxes and bags used by retailers to ship product back to Del Monte.

8)

The unorganized containers are filled with Del Monte recalled pet treats

and food mixed together with non-recalled pet treats and food, products produced by other manufacttuers , non pet food products, such as household cleaners and auto parts , and in some cases trash . These containers are haphazardly filled . In some cases, a single unit of product is contained in a container, in others, the containers are overflowing with recalled and non-recalled product . Because of the unorganized nature of these containers and the amount of handling that they have been subject to prior to Del Monte's receipt of them, their contents fiequently break
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open, causing the contents to spill or leaf , resulting in infestation of a greater magnitude than the organized material . The unorganized containers are the single greatest cause of infestation.
9) In the event Del Monte is required to cull non- recalled product from these

containers and organize the recalled product contained among this unorganized material, the cost to Del ]Monte is estimated to be approximately $167,052. 1 approximated this number based on -my estimate of $2.00/case to sort through, identify, organize and inventory the recalled pet treats and food contained in these boxes. This cost does not include continued costs related to storage or costs associated with pest control.

10)

The raw, unprocessed wheat gluten purchased by Del Monte from

ChemNutra, Inc. is stored in 55-pound bags . Del Monte is currently storing 46 full and 15 partial bags of wheat gluten in Watsontown, Pennsylvania (21 fiill and 5 partial bags of ChetnNutra, Inc, batch number 20061101; 17 full and 5 partial bags of ChemNutra, Inc, batch number 20061027; 7 full and 5 partial bags of ChemNutra, Inc. batch number 20061108; and, 1 full bag without a ChernNutra, Inc. batch number ). At its Topeka, Kansas location, Del Monte is storing 47 55-pound bags of ChemNutra, Inc. batch number 20061203; 60 55-pound bags of ChetnNutra, Inc. batch number 20061202; and, 779 55-pound bags of ChelnNuUa, Inc, batch number 20070116.

11)

Del Monte is also currently storing work-in-progress in Topeka, Kansas.

Del Monte is currently storing 6 different types of work-in-progress , reflecting 6 different recipes that were being manufactured at the time the dry mix was pulled from the production line. Del Monte is storing 4,400 pounds of recipe " A" in 6 totes ; 6,000 pounds of recipe " B" in 4 totes; 12,000 pounds of recipe " C" in 12 totes; 7,210 pounds of recipe "D" in 5 totes; 4,000 pounds of recipe "E" in 4 totes; and, 9,000 pounds of recipe 'T" in 9 totes.

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12)

The cost to Del Monte of storing this raw wheat gluten and work-in-

progress is over $1 , 215 per month and $14,580 per year.

13)

In all locations where pet treats and food (organized and unorganized),

raw wheat gluten and work-in-progress are being stored , infestation in the form of flying insects and larvae is present , requiring periodic fumigation . Del Monte has been forced to fumigate on several occasions at each location in order to keep the infestation of the recalled product at manageable levels . However, repeated future fumigation will be required.

14)

Because of this infestation , Del Monte had to relocate recalled pet treats

and food stored in its Fort Worth, Texas distribution center to the Independence, Missouri warehouse due to fears that the Foil Worth location would ;fail a safety and health audit by the American Institute of Baking ("AIB"), which inspects food distribution centers for food safety risks . Passing AM audits is a condition precedent to Del Monte's ability to sell food, human or pet, to many of its customers , including Wal-Mart.

15)

Del Monte has received communications from the Food and Drug

Administration (FDA) advising that the pet treats, food, raw wheat gluten, and work - in-progress it is currently storing should be destroyed because the continued storage of these items poses a health and safety hazard to the general public. The FDA acknowledged that this

recommendation was not issued because of Del Monte's handling of these items, but rather, the FDA's past experiences, which have shown that the longer an allegedly defective product is held after the initiation of a recall, the greater the chance it will be accidentally introduced into the stream of commerce. The FDA also requested that it be notified of this destruction so that it can have a. witness present. Attachment 2 to this Declaration is a copy of an email froth the FDA

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confirming these communications and directing Del Monte to start destroying the recalled product, wheat gluten and work-in-progress. 16) Attachment 3 to this Declaration is a series of true and accurate

photographs depicting the material stored in Del Monte's warehouses.
17) 1 have a general understanding of Dr, McCabe's proposed sampling plan Del Monte will be able to gather

for the products and ingredients that Del Monte is storing.

samples of the products and ingredients it is storing in accordance with the sampling plan recommended by Dr. McCabe to the extent there is product available for each SKU date, batch or recipe .of work-in-progress.

Miehae Hayes

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NOTARIAL CERTIFICATE

COMMONWEALTH OF PENNSYLVANIA COUNTY OF ALLEGHENY

On this 14°i day of November, 2007, before me personally appeared MICHAEL HAYES, to me known, who, being by me duly sworn , did depose and say that he i s the Director of Quality Assurance of DOD Monte Foods Company, the company described in and which executed the foregoing instrument; and that he is duly authorized to execute the foregoing instiurnent on behalf of said company.

COMMONWt3ALTIt F PENNSY ANIA Notarial5eal
Roseman K Pelitte Notary Public City of Pittsburgh , Allegheny coun My o 1 Mission Pxplres dune 15, 2010 Member, P ennsylvania As9ocietbn of Nofedes

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ATTACHMENT 1

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DEL MONTE PET PRODUCTS - RECALL REGARDING MDL LITIGATION Held Inventories ( Excluding Banana Boxes ) - Del Monte Distribution Centers

c k.rs'/, sk

SKU : 103500 103500 103500 103500 103590 103590 103590 103590 103590 106850 106850 106850 :.
106860 `.

Product Description Dollar General Beef Flavored Jerky Strips Dog Treats Dollar General Beef Flavored Jerky Strips Dog Treats Dollar General Beef Flavored Jerky Strips Dog Treats Dollar General Beef Flavored Jerky Strips Dog Treats Dollar General Beef Flavored Beef Sticks Dog Treats Dollar General Beef Flavored Beef Sticks Dog Treats Dollar General Beef Flavored Beef Sticks Dog Treats Dollar General Beef Flavored Beef Sticks Dog Treats Dollar General Beef Flavored Beef Sticks Dog Treats OI ' Roy Be'ef,Flavor-.Snack Sboks . Dog.Treats OI' Roy=<Beef. Flavor Snack :Sticks Dog :Treats
"01' Roy. B66f , F,lavor : Snack Sticks ' Dog Treats .1OI' Roy Beef ;.Flavor, <lerky:Strips 'Dog Treats

Size 12x3oz 12x3oz 12x3oz 12x3oz 12x4.5oz 12x4. 5oz 12x4 .5oz 12x4. 5oz 12x4 . 5oz 6x26oz 6x26oz :,
' 6x26oz;. 6x26oz

Lot C ode TP7C05 TP7C06 TP7C07 TP7C08 TP7B20 TP7B21 TP7C08 TP7C09 TP7C10 TP7B19 TP7B20
TP7B21 ,TP7B06 , TP7B07108 "

^ ..................; 1,392 40,440 47,424 22,260 23,496 29,988 6,492 29,676 12,480 9,450; 40,308
22,152; 2;976

1,06860 107610 ..
^`^:107630 ."

<107630:.
x07630 ` ^,<;1'07630 `

OI' Roy Beef Flavor Jerky: Strips Dag Treats Jerky:Treats . Beef Flavo^..:'Dog:,Snacks ';JerkysTreats Beef"FlavorFDog Snacks .:>; ^ f#,j erky Treats'Beef ; Fiavor Dog,nSacks
Je'rky;Treats Beef Flavorpog;Snacks".

6x26oz 12x3.75oz
12x7 5oz.'?

,... 2x7 5oz
;:12x7 56 z>`

TP7C05/ 06 : ";TP7B08 TP7809
TP7B10

7,824: 20,784; 10;044: 45,888_
7;932,

` ' < {A 4 j,erky:Treats:Beeavo. Dog ^S sacks <`,.
^c^Jerky Treats Beef."Flavor`Dog;Snacks

12x7.5oz ^i
1227 5oz

TP7B15 ,''
TP7B16

26,;892;
540<

NMI 07630 ^'^107630 'sn1D7630.;; 107650 107650

^^ ^^Jerki Treats Beef.-Flavor Dog': Snacks 13erkyTr eats Beef;Flavor Dog Snacks Jerky Treats Beef Flavor Dog Snacks Jerky Treats Beef Flavor Dog Snacks

12x7 5oz r 12x7 5oz,, , .' 8x11.25oz 8x11 . 25oz

TP7C05 TP7C06Y M TP7B06 TP7B07

3984' t^3a fi1t 4,480 30,968

Case 1:07-cv-02867-NLH-AMD
107650 130040 314410 314410 344330:

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8x11.25oz .. 8x20oz 12x15oz 12x15oz 12x4.5oz 12x22oz ^; 24x13.2oz 24x13.26z ' _ .'6x30oz : 6z30oz,r'
6x30oz

Jerky Treats Beef Flavor Dog Snacks Jerky Treats Beef Flavor Dog Snacks Jerky Treats Beef Flavor Dog Snacks (BOLO) Jerky Treats Beef Flavor Dog Snacks (BOGO) Gravy Train Beef Sticks .Dog .Snacks

363310` r d
396050 396060 401$70; . 401870 401870: 401880;
401880 L z

HaPYails} Mea Cutswith Beefin^GYavy Do"gF,ood ^^ _.... pT
OI' Roy with Beef Hearty Cuts in Gravy Dog Food -01'-Roywith .BeefHearty'Strips,in:Gravy, Dog, Food OI' Roy Beef Flavor,>S'r kk Sticks;Dog-Treats -01 RoBeef Flavor.Snack Sticks Dog Treats , ,.
01' Roy' Beef, Flavor: Snack ,Sticks: Dog Treats

TP7B08 _, TP7B15 ,. . TP7B08 TP7B09 TP7B19/20 BC7A29s,^M.. § BC6M21 BC7A19 _ .,TP7C08 :, ,,TP7,.C09,
TP7C10 -

6,832 27,660 7,560 31,152 168 'r_. ;372 75 ,,. 3,072 6,768 29,826 r: 2;618;
3;294

4y401880 424070 424110
487280;

OI Roy; Beef,Flavor JerkyStrips `Dog Treats, , , :=" ,._ y, .... _ 01RoyBeef Flavor;Jerky.:Stnps,Dog Treats , ' s,Do Treats 01 RoBeefFlavor:Jerk S;trr Happy,Tails.Bopf Flavo.r:Be6f Sticks Happy Tails Beef Flavor Jerky Strips
Jerky,Tres tBeef`Fla^orreDog-Snacks a

6z30oz,`=
;6x30oz

x30oz. 12x6oz, 12x6oz
6x7 59 z _

2$;890' X57;43$ ,,TP7C0gg- "I`20,706 1 8^ 14,736. TP7C08/09 16,368 TP7B08/ 09 _TR7C06 :
TP,7C07F TP.7:B08 ' pM ^8;136:

^,2^624 :6z7 50 z`k ;,x TP7B09^^ Jerky'Tre"ats Beef Flavor Dog'Snacks ` YQ 487280' ^^990 k TP705;" Jerky,Treats Beef:Flavorpog Snacks 1487280 rc1686 TP7C06 Jerky Treats B eef Flavor Dog`SnackskrFr^ s , 67} 5oz^ r` 4"8 7280 4 36,396 TP7C05 12x6oz OI' Roy Beef Flavor Jerky Strips Dog Treats 566400 24,240 TP7C06 12x6oz OI' Roy Beef Flavor Jerky Strips Dog Treats 566400 ^D 12x22o^, r, .. z , " rv BC6M75ti 3 E 5$3880 ^.. ^` -^ OI' Roy CbuntryStew,Flearty^Cufs _ in Gravy Dog;F3oodz,; 13,992 TP7-C12 -: 12x2 3oz : Flavor Cat Treats Pounce" Meaty Morsels Moist Chicken 81.7080 1,028,306 DISTRIBUTION CENTER TOTALS:

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ATTACHMENT 2

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Fama , Richard

REDACTED ATTORNEY CLIENT PRIVILEGE

From : Lauff, Megan [Inailto:[e-mail]] Sent : Tuesday, November 13, 2007 8:44 AM To: Hayes, Michael Subject : RE: Destruction of Recalled Products Mike Yes everything in your email below is correct. Please start the process of scheduling the destruction; let me know the tentative date and location so that I can have an investigator witness the destruction. Please feel free to contact me with any additional questions. Thanks, Megan

Megan M. Lauff, Recall Coordinator FDA/Philadelphia District U.S. Customhouse , Room 900 2nd & Chestnut Streets Philadelphia , PA 19106 [phone] fax (215 ) 717-3721 megan .lauff(a^fda.hhs.gov

From : Hayes, Michael [mailto:Michael. [e-mail]] Sent : Friday, November 09, 2007 2:01 PM To: Lauff, Megan

Subject : Destruction of Recalled Products

As you may recall, the FDA has advised Del Monte to destroy all recalled pet food products, all ingredients containing recalled wheat gluten distributed by Chem Nutra and all raw recalled Chem Nutra

11/15/2007

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ATTACHMENT 3